Alaska’s Unreasonable Assault on ‘Reasonable Efforts’

ByRichard Wexler |November 2, 2016

Here’s something you don’t see every day: a high-ranking state official admitting that the agency she runs routinely violates federal law.

The federal law in question has been on the books since 1980. It requires states to make “reasonable efforts” to keep children safely in their own homes before resorting to consigning those children to the chaos of foster care.

But, the Alaska Dispatch News tells us, according to the director of that state’s Office of Children’s Services, Christy Lawton, “OCS' often young, inexperienced employees may sometimes feel compelled to remove children from their homes when other options could suffice if there were more time to work with families.”

Yes, the reasonable efforts clause has lots of loopholes. But it does not say “make reasonable efforts unless you don’t have time.”

Unfortunately, the federal government does almost nothing to enforce this law, so it’s often ignored.

The penalty for ignoring the law is losing federal aid for that case. But to “prove” it has complied with the requirement a child welfare agency need merely show that a judge has checked a box on a form.

Twenty percent of the judges said they always concluded that reasonable efforts had been made – in other words the child welfare agency was perfect. Another 70 percent said they rarely concluded otherwise.

Even more significant: 40 percent of judges admitted that they lied and said the state child welfare agency made “reasonable efforts” in cases where the judges really didn’t believe it. In half those cases, the judges admitted they lied because if they didn’t, the state would not get the federal aid and their county would have to pick up the extra costs.

Remember, this is just the proportion willing to admit on a survey that they lie.

But Lawton apparently feels no need even to maintain a pretense of following the law.

This contempt for the law may help explain why Alaska is such an extreme outlier when it comes to tearing apart families. In 2014, still the most recent year for which state-by-state data are available, Alaska took away children at the fourth highest rate in America, even when rates of child poverty are factored in.

Lawton says overloaded workers have no time to work with families. Actually, it’s the other way around. Alaska’s obscene rate of child removal makes clear that the caseworkers are overloaded because they waste so much time on false allegations, trivial cases and needlessly removing children.

It also wastes scarce funds. That’s because of the great paradox of child welfare: The worse the option, the more it costs. Safe, proven alternatives to foster homes cost less than foster homes, which cost less than group homes, which cost less than institutions. So Alaska winds up spending on child welfare at one of the highest rates in the country — and getting dismal results.

But here’s the most tragic consequence of all: The more a system is overloaded the less time workers have to investigate any case properly. So workers overlook more children in real danger. Then, local media often assume the death is because the agency bends over backwards to enforce reasonable efforts to keep families together. The truth is the opposite. Children don’t die because of reasonable efforts, they die because of the overload caused by the failure to make reasonable efforts.

The federal government needs to get serious about enforcing reasonable efforts. Among the ways this could be done:

In 1992, the U.S. Supreme Court ruled that federal law does not give children or families the right to sue when the reasonable efforts requirement is ignored because the requirement supposedly was too vague. Congress should make the requirement more specific. Such language should be included in any attempt to revive the “Family First Act,” which is widely believed to be dead in the current Congress.

The Department of Health and Human Services should begin conducting in-depth “reasonable efforts” audits of statistically-significant samples of cases. That doesn’t mean a cursory reading of the case file to see if the right boxes are checked. Nor does it mean the inadequate approach used in the current Child and Family Services Reviews. It would require reviewing the file, interviewing relevant parties and making an independent determination concerning whether the state was consistently making reasonable efforts. States that failed would lose a large chunk of their federal foster care money.

Of course, it’s understandable that the federal government might not want to try something so drastic on all 50 states without piloting it somewhere first.

Filed Under:

It is disheartening that this writer did not mention the Active Efforts required to prevent removal, and if removed, to reunify, under the Indian Child Welfare Act. This was enacted in1978 for Native families given the overrepresentation in child welfare.